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Also attached is a discussion paper that was prepared by my staff a couple of years ago. It is a comprehensive description of

NOAA's case-processing procedures from the time a violation is documented through hearing and final decision.

Briefly, a

violation may be detected by either an officer of the National Marine Fisheries Service (NMFS), the Coast Guard, a U.S. Customs agent, or a state agent deputized under a cooperative enforcement agreement with NOAA. A NMFS field officer prepares an Offense Investigation Report (OIR) and, following review by the field enforcement office, forwards it, as part of the case package to one of the five NMFS Regional Enforcement Offices for review. The Regional Enforcement Office reviews the case file for completeness, checks for prior violations, and, if the file is complete, forwards its to the corresponding regional office of

NOAA General Counsel.

NOAA Office of General Counsel prosecutes civil penalty cases. An assigned case attorney reviews each case for legal sufficiency in accordance with enforcement policy published in NOAA's National Enforcement Operations Manual (NEOM). Under the standards and procedures set forth in NEOM, the case attorney may: (1) decline prosecution; (2) return the case to NMFS Enforcement for further investigation; (3) downgrade to a written warning; (4) refer the case to headquarters for action; (5) initiate a civil penalty action; or (6) refer the case to the Department of Justice for judicial action.

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The case attorney initiates a civil penalty action by issuing a
charging document known as a Notice of Violation and Assessment
(NOVA). NOAA's procedural rules set forth the specific content
and procedural requirements for NOVAS. (See 15 CFR part 904,
subpart B.) In addition, NEOM establishes standards which the
case attorney must meet before issuing a NOVA, including issuing
"a NOVA when in the attorney's judgment the case report shows
that it can be established by a preponderance of the evidence
that the Respondent has committed a violation and a civil penalty
is warranted." (NEOM, Chapter 4-C2, page 10.) Similarly, the
attorney must decline prosecution if the evidence is
insufficient, and may decline it if he or she determines that no
valid purpose of the law would be served by going forward.

The attorney issues the NOVA either by certified mail or by
personal service, and encloses a copy of NOAA's procedural rules.
The NOVA specifies the facts believed to show a violation, the
law or regulations allegedly violated, and the amount of the
penalty assessed. It also enumerates the respondent's procedural
rights and options. The respondent must respond within 30 days
from receipt of the NOVA. The respondent may, during this time,
pay the penalty, request a hearing, seek to have the NOVA
amended, or request an extension of time to respond.

The case attorney determines the appropriate penalty to assess in the NOVA with guidance from NOAA's civil penalty guidelines.

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NOAA's Regional General Counsel Offices develop the guidelines

approval by headquarters.

for the fisheries in their regions and submit them for review and The guidelines are tailored to the characteristics of the particular regional fisheries, with input from NMFS, Coast Guard, and the relevant Fishery Management Councils. The penalty must be fair, yet provide for sufficient deterrence that is, it must represent more than just a cost of doing business. Ordinarily the guidelines provide the

flexibility necessary to reflect all relevant factors, including those which the Magnuson Act requires to be considered. The single most important factor is the respondent's violation history. Both aggravating and mitigating circumstances, are also factored in, as is the value of the catch and whether or not the catch was seized. NOAA's procedural rules address consideration of a respondent's ability to pay the penalty assessed. See 15 CFR 904.108. The respondent is responsible for supplying the financial information necessary to make this determination. То aid in this purpose, NOAA attorneys provide respondents with simplified financial forms.

For

Each region also utilizes "summary settlement schedules." certain minor, first-time violations, the enforcement agent may issue summary settlements to alleged violators based upon lower fixed penalty amounts for specified violations on the "schedule." A person issued a summary settlement form may, within 20 days, elect either to pay the summary settlement amount or to wait for

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the formal NOVA process. This system operates somewhat like a traffic ticket system or magistrate's bail schedule. It offers a person who does not wish to contest the facts the chance to

settle the matter quickly and informally.

If a respondent requests a hearing with respect to the NOVA, the Office of the Administrative Law Judge dockets the request. Subpart C of 15 CFR part 904, contains the hearing and appeal procedures. All hearings are formal "on the record" hearings before an Administrative Law Judge. A respondent may either be represented by counsel or other representative, or appear pro se. A pre-hearing order from the ALJ requires the parties to submit a Preliminary Position on Issues and Procedures (PPIP), setting forth issues in dispute, witnesses, exhibits, and requested hearing location. For routine cases, the PPIP takes the place of discovery. The ALJ holds hearings throughout the country. He tries to schedule them at mutually convenient locations. At the hearing, the parties each call and cross-examine witnesses and introduce exhibits. All testimony is transcribed by a court reporter. The ALJ's Office provides transcripts to all parties. Following the hearing, parties may submit proposed findings of fact, conclusions of law, and briefs.

The ALJ then issues an initial decision which becomes the final decision of NOAA unless one of the parties files a petition for review by the NOAA Administrator within 30 days. Review is

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discretionary with the Administrator and is limited to the

following grounds: (1) a finding of material fact is clearly erroneous; (2) a necessary legal conclusion is contrary to law or precedent; (3) a substantial and important question of law, policy, or discretion is involved; or (4) there has been a prejudicial procedural error. No new evidence may be presented at the appeal level, and the Administrator will not consider matters raised for the first time on appeal that could have been raised below. NOAA's appeal procedures are patterned directly upon those recommended by the Administrative Conference of the United States. (See 1 CFR 305.68-6.) If neither party appeals

to the NOAA Administrator within the prescribed time period, or after the Administrator has issued a final order, the respondent may appeal an adverse decision to a federal district court. If the agency loses at the Administrator's level, it cannot appeal.

All ALJ and Administrator decisions, as well as the decisions of the Fish and Wildlife Service, are published in the Ocean Resources and Wildlife Reporter (ORW). The ORW is also available on LEXIS, in the Environmental Library.

Of the 3,000-plus cases opened by NOAA each year, the vast majority are resolved by negotiated settlement between the respondent and the NOAA case attorney. As with other

adjudication systems, a high rate of settlements keeps NOAA's law enforcement program operating in an efficient and timely manner.